Recruiter Misconduct Defense

Recruiting duty is demanding, competitive, and just plain tough. Recruiters work tirelessly to identify and recruit qualified young men and women to serve in our nation’s military. But this comes at a cost. Recruiters are stationed away from the flag pole, have a demanding op-tempo which creates strains on family life, and face the constant pressure to cut corners in order to make mission.

MJA has unparalleled experience defending military Recruiters facing court-martial or adverse administrative actions. Contact one of our military defense lawyers today to learn more.

Common Charges

Recruiters have increasingly become the subject of investigation, nonjudicial punishment, and court-martial prosecution due to allegations of misconduct with poolees and members of the delayed entry program. Common charges that Recruiters must defend against include:

• Article 92 – Failure to obey order or regulation
• Article 93a – Prohibited activities with military recruit or trainee by person in position of special trust
• Article 107 – False official statements
• Article 120 – Sexual Assault
• Article 128 – Assault
• Article 134 – Indecent conduct, indecent language, or general disorders prejudicial to good order and discipline or service discrediting
• Article 134 – Extramarital sexual conduct

Article 93a, effective January 1, 2019, explicitly prohibits recruiters from engaging in sexual activity with potential recruits. This includes anyone who enlists in the delayed entry program and any cadet, midshipman, or officer candidate. Importantly, consent is not a defense under Article 93a.

The individual service branches have separate punitive orders/directives also dealing with this type of conduct, violations of which can be charged under Article 92, UCMJ. For example, Army Directive 2016-17 prohibits inappropriate relationships and activities between recruiters and recruits.

Special Considerations

Recruiter misconduct cases are unique. They often involve the testimony of civilians and members of the delayed entry program who are new to and largely unfamiliar with the military. Civilian law enforcement authorities may be involved. The alleged offenses almost always take place in the civilian community, far away from any military post. Typically, military counsel will not be assigned to represent a service member until months after the alleged incident took place, after charges have been preferred. By this time, key witnesses are often scattered throughout the United States and abroad, making communication difficult.

Pretrial investigation is critical to any successful defense. Attorneys use pretrial interviews to lock witnesses into their testimony. These interviews can be used at trial for lines of impeachment, to show a motive to fabricate, or to demonstrate inconsistencies in the government’s evidence. Establishing a clear timeline and presenting good military character evidence provide additional avenues to defend against the charges.

With any defense, however, winning at court-martial is ultimately about creating reasonable doubt by telling a better story than the government. But telling a better story doesn’t just happen. It takes hard work, investigation, and experience.

Know Your Rights
 

Recruiters are particularly vulnerable during criminal investigations. Recruiters are known for being personable and convincing–attributes essential to finding success on recruiting duty. As experts in the art of negotiation and sales, there is a strong temptation for Recruiters to “cooperate” with law enforcement by providing a statement (written or verbal) or giving consent to a search. This is a mistake. “Cooperating” with law enforcement doesn’t make you appear innocent–it just makes the government’s case against you stronger.

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstruction of justice. In some cases, the underlying allegations go away entirely and the service member is left with the alleged false statements as the only surviving charges.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. The decisions you make while under investigation will directly impact your likelihood for success at trial. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Experience Matters

MJA has unparalleled experience defending Recruiters facing courts-martial, administrative separations, chapter boards, NJP/Article 15 punishment, relief-for-cause, suspension/removal from duty, and adverse administrative actions.

While on active duty, our attorneys served as military defense counsel, prosecutors, and legal advisors in countless complex and high-profile Recruiter misconduct cases. We now use this experience to defend military Recruiters throughout the United States facing allegations of misconduct. MJA knows how to win and stands ready to fight for your career and reputation today.

Contact MJA Today

If you are a Recruiter under investigation or facing court-martial or administrative action, it is critical that you retain the very best military defense lawyer to protect yourself and your career.  Contact one of our military justice attorneys today to learn more.